Viga Da Silveira (Migration)

[2024] AATA 4046

Viga Da Silveira (Migration) [2024] AATA 4046 (7 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vanessa Cristina Viga Da Silveira

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  2216365

HOME AFFAIRS REFERENCE(S):          BCC2022/1676171

MEMBER:Wendy Banfield

DATE:7 October 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.212(a) of Schedule 2 to the Regulations.

Statement made on 07 October 2024 at 3:59pm

CATCHWORDS  
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – satisfied that the applicant is a genuine applicant for entry and stay as a student – positive study progress – genuine interest in study – courses the applicant has completed and is studying are directly relevant to her stated aim – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 November 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 May 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant met the criteria of a genuine temporary entrant for study.

4. The applicant appeared before the Tribunal on 3 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.

6. Prior to the hearing the applicant provided the following submissions:

   ·Department of Home Affairs (the Department) notification and decision record dated 1 November 2022.

   ·Completed Student Visa Information Form.

   ·Confirmation of Enrolment (COE) for an Advanced Diploma of Leadership and Management from 22/04/2024 to 06/04/2025.

   ·Representative’s submission dated 1 September 2024.

   ·Completion Certificate and transcript for an Advanced Diploma of Leadership and Management dated 21 April 2023.

   ·Completion Certificate and transcript for a Diploma in Social Media Marketing dated 31 March 2024.

   ·Genuine temporary entrant statement of the applicant dated 31 August 2024.

7. The Tribunal also considered the information provided to the Department at the time of application.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student and whether she intends genuinely to stay in Australia temporarily.

10. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

12. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

13. The Tribunal considered the applicant’s circumstances in her home country and whether the applicant has reasonable reasons for not undertaking further study in Brazil. The applicant gave evidence that she studied law in her own country and has a background in business. At the hearing and in written evidence, the applicant declared she has her father, brother, sister, a sister-in-law and two nieces living in Brazil. The applicant stated her father lives alone while her siblings live in another city. She said she intends to return to her home country to be with her father and to continue running a business. 

14. In a genuine temporary entrant statement to the Tribunal the applicant set out her reasons for choosing the courses and education providers she has enrolled with. This included enhancing her business skills by studying leadership and management, and marketing and communications in an English-speaking environment. The Tribunal finds the applicant provided logical reasons for making the decision to study in Australia. It is also accepted the applicant has ongoing personal and family ties to her home country, however, the applicant did not demonstrate through independent evidence, any economic or business ties to Brazil that would be a strong incentive for her to return after her studies.

15. The applicant is single with no dependents. She first arrived in Australia to visit a cousin and decided to study English while holding a Visitor visa. The applicant submitted she then applied for a student visa to be able to study in an English-speaking environment. Since her arrival the applicant has completed a General English course, a Diploma and Advanced Diploma in Leadership and Management and a Diploma in Social Media Marketing. She is currently studying an Advanced Diploma of Marketing and Communications that is due to be completed on 6 April 2025. She advised she is employed in casual work to provide for her daily expenses. The Tribunal had some concerns about the amount of time the applicant has spent in Australia after arriving as a visitor, and the number of courses she has undertaken while onshore. However, the Tribunal notes the applicant has completed each of her courses and continued studying while awaiting the outcome of her application for review. As a result, she has a short time remaining before her current course is completed. The Tribunal gave some weight in the applicant’s favour when considering her circumstances in Australia.

16. Regarding the value of the course to the applicant’s future, the Tribunal considered whether the applicant is undertaking courses that are consistent with her current level of education and whether they will assist the applicant to obtain employment or improve employment prospects in her home country. The applicant submitted she studied law in Brazil but had been working in an independent business before her arrival in Australia. Although the applicant may have studied at tertiary level, the Tribunal accepts she may have decided in the past not to pursue law as a career. The Tribunal is therefore prepared to accept the courses the applicant has undertaken were logical and her academic progress consistent. 

17. In considering the relevance of the course to the applicant’s past or proposed future employment in her home country, the applicant stated she plans to use her management and marketing qualifications to develop an online business. The Tribunal is satisfied the courses the applicant has completed and is studying are directly relevant to her stated aim. In her written submission and at the hearing, the applicant explained her past difficulties in managing others and delegating tasks. She also explained the value of having studied in an English-speaking environment. Having considered the written submissions of the applicant and her representative, and the evidence at the hearing, the Tribunal finds the applicant should be permitted to finish the course she is currently enrolled in.

18. The applicant’s immigration history refers to her visa and travel history. The applicant has returned to Brazil since she arrived in Australia and declared she plans to return to her home country in 2025. There is no evidence before the Tribunal that is adverse to the applicant when considering this criteria.

19. The Tribunal assessed the evidence individually and cumulatively. While there are aspects of the applicant’s case that weigh against her, on balance the evidence weighs in favour of the applicant in assessing whether she is a genuine temporary entrant for study. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

20. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

21. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.212(a) of Schedule 2 to the Regulations.

    Wendy Banfield
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil
    Minister for Home Affairs and Minister for Cyber Security

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

    This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa program must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a) the applicant’s circumstances; and

    b) the applicant’s immigration history; and

    c) if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d) any other relevant matter

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a) to d), to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 – Directions

    Assessing the genuine temporary entrant criterion

    1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a) considering the applicant against all factors specified in this Direction; and

    b) considering any other relevant information provided by the applicant (or information otherwise available to the decision maker)

    3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4. Circumstances where further scrutiny may be appropriate include but are not limited to:

    a) information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b) the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c) the applicant intends to study in a field unrelated to their previous studies or employment; and

    d) apparent inconsistencies in information provided by the applicant in their Student visa application or Student Guardian visa application.

    5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7. For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia. The applicant’s circumstances in their home country

    9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a) whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b) the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c) economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d) military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e) political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a) The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b) evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c) whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e) the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a) whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b) relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c) remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13. An applicant’s immigration history refers both to their visa and travel history.

    14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a) Previous visa applications for Australia or other countries, including:

    i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    iii. b. Previous travels to Australia or other countries, including:

    iv. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    vi. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    vii. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.

    If the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant

    15. If the primary or secondary applicant for a Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.